Criminal records may unfairly color hiring

'Not everyone is appropriate for every job.'

With high unemployment rates, employers are receiving more applications than ever before in an attempt to fill what limited job openings they have with the most qualified candidates. When reviewing applications, employers should be aware of the new federal protections in place for criminal ex-offenders.

On April 25, the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC enforces Title VII, which prohibits employment discrimination based on race, religion, sex, or national origin, for employers with 15 or more employees. The new guidance supersedes all previous guidance in this area and was effective upon issuance.

Although having a criminal record is not specifically listed as a protected class under Title VII, the EEOC believes the use of criminal records in the hiring process may have a disparate impact on a protected class because of their race. Under Title VII, disparate impact can be shown if an employment practice or policy has a disproportionately adverse effect on members of a protected class as compared with nonmembers of a protected class. According to the EEOC’s guidance, African-American and Hispanic men are arrested at a rate that is two to three times the proportion of the general population and, therefore the use of criminal records in the hiring process may have a disparate impact.

So does the new guidance mandate that employers should stop conducting background screens or that they need to simply hire ex-offenders in every instance? No. Employers should, however, review their current screening policies to ensure compliance with the new guidance and consider following the EEOC’s suggested best practices.

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